Agenda item

Report by the Assistant Director Strategic Infrastructure and Planning (PN6).

As resolved at the meeting of the Planning and Regulation Committee on 8^th March 2021, the report provides an update on the progress with regard to the work on the application and Environmental Statement for the review of conditions for the ROMP areas DD1 and DD2.  It is recommended that the Planning and Regulation Committee’s conclusion from its meeting on 9^th September 2019 (Minute 39/19) that mineral working on the Radley ROMP site has permanently ceased be updated to reflect new information demonstrating an ongoing intention to continue mineral working on the Radley ROMP site and that the unserved Prohibition Order is revoked. 

It is RECOMMENDED that the Planning & Regulation Committee’s previous conclusion from its meeting on 9^th September 2019 (Minute 39/19) that mineral working on the Radley ROMP site has permanently ceased be rescinded and that the Prohibition Order of that date but not yet served is revoked.

As resolved at the meeting of the Planning and Regulation Committee on 8^th March 2021, the Committee now considered a report (PN6) providing an update on progress with regard to the work on the application and Environmental Statement for the review of conditions for the ROMP areas DD1 and DD2.  

Having presented the report Mr Periam confirmed that be understood a partial order could be served.

Speaking on behalf the Friends of Radley Lakes Roger Thomas advised that although members of the Committee had received a number of detailed papers about this item which all looked very complicated and technical it was in fact very simple. The Radley ROMP site was covered by a number of separate mineral planning permissions, granted at different times between 1954 and 1992. Those different areas had different histories with some worked out many years ago, but never restored and others, where extraction had yet to even start - such as the Nyatt site, which was the subject of Item 7 on this agenda. Radley Parish Council was asking that a Prohibition Order be served on just two of these old permissions where extraction in both areas had been completed by 1979 at the latest. One had then been filled with waste but never properly restored and so a Prohibition Order would clarify the planning position and enable the County Council to require timely restoration.

The County Council’s was that a Prohibition Order could not be served on only part of a ROMP site whereas Government guidance said exactly the opposite and indeed went on to say that in some circumstances, probably including this one, there was a statutory duty on the authority to serve an order covering only part of a ROMP site. Obviously there had been some kind of misunderstanding over the legal position and he had hoped to have been able to discuss this with county officers before this meeting, but that hadn’t been possible. The Committee obviously would not want to ask officers to do anything which wasn’t supportable in law, so in his opinion there were two possible ways forward. One to amend its resolution so that the Council’s intention to serve a Prohibition Order on areas where future extraction was planned was revoked, while maintaining that intention to serve on the two areas where extraction had definitely ceased. The other approach would be to defer a decision to allow time for discussion between officers and interested parties in order to resolve apparently conflicting views of the legal position. This all mattered because if a Prohibition Order was not served on the land which he had referred to above then restoration of those areas might not take place until 2043 -   around 65 years after the completion of extraction and that quite simply was not how mineral planning was supposed to work.

Councillor Constance asked Mr Thomas to clarify the emphasis he had made regarding the cessation of work in those 2 areas in 1979 and that the County Council would be able to make a prohibition order on those 2 areas but our advice was that the EIA would not be capable of being assessed.

Mr Thomas replied that it was not clear to him that the EIA for the Nyatts site was intended to cover those areas and he was not aware of plans to extend that assessment over areas of land they had no interest in.

Mr Periam added that officers had been advised of work being undertaken by the operator for the submission of the application for the review of conditions. However, that in itself was not a submission but an indication that they were doing some work and it was impossible to say what would eventually be put forward until an application had been received although the expectation was that everything in the relevant areas would be included.

Richard Dudding spoke on behalf of Radley Parish Council whose position remained as in its submission of 6 July namely that a prohibition order should not be made for most of the ROMP area but that an order should be made for the north-western part of the area. Where minerals remained that would enable extraction to proceed with suitable modern conditions and where minerals were exhausted and had been now for 40 years enable that land to be restored and future uses decided on their merits. That outcome was not just desirable but sound in law. Officers had still not looked properly at this solution and their current advice did not address the points put forward by Radley Parish Council but relied on a counsel’s opinion, which the Parish Council believed to be unsound. In their view the advice did not correctly describe the statutory tests for a prohibition order to be made; did not correctly assess the facts to see whether those tests had been met and did not report what had been said to Parliament about the purpose of the legislation.  The key points about that legislation were that it did not require a prohibition to coverthe whole of a ROMP area but quite deliberately allowed a partial approach, to cater for a ROMP area with split control and circumstances and created a duty to make a prohibition order where the statutory test was met, not just a power.  This was to avoid blight through inaction.

Circumstances now before the Committee were that the ROMP area was in split control, with good progress towards a ROMP application in one part but not in the other. The latter part clearly met the statutory test for a prohibition order, having no remaining minerals and no evidence of mineral activity resuming. The land could easily be delineated and that there would be continued blight if no action was taken. It was quite clear to them that there was a duty to serve a prohibition order for this part of the ROMP area and they urged the Committee not to make a decision today based on the advice submitted as they considered that to be unsound but instead resolve to proceed with a prohibition order for the north-western area alone or defer a decision pending further advice.  If the latter course was decided upon then the parish council would consider commissioning its own counsel’s opinion.  

Responding to Councillor Bennett Mr Dudding advised that although the county council had been impressed by the evidence submitted in support of the studies undertaken it was quite clear from, for example, the bird survey that clearly none of it related to the north west area.

Councillor Johnston speaking as local member stated that he had been involved with this site since 1982 during which time the area had been blighted.  Having regard to the officer report and the comments from the earlier speakers, which he endorsed he considered safest thing to do was defer a decision in order to resolve the legal issues.

Officers confirmed that if a decision was taken to defer then the County Council would need to decide if another legal opinion might be required.

Nick Dunn speaking on behalf of H Tuckwell and Sons reminded the Committee that this was the second attempt at serving a Prohibition Order on the Thrupp Farm ROMP the first having been quashed in 2014 by the Secretary of State who had awarded full costs against Oxfordshire County Council. As detailed in the current Committee Report, Tuckwells had made significant financial investments in the ROMP, at the cost of tens ofthousands of pounds and would continue to make further significant investments over the coming months, to delivera ROMP Application and Environmental Impact Assessment.

The key legal test to quash the Prohibition Order was that if ‘evidence of a genuine intention to extract minerals for the ROMP’had been provided. It was clear from the Committee Report that your Planning Officer and legal advisor had recognised that this legal test had been met and with no legal justification for the Order they welcomed the officer recommendation for its revocation. In considering that recommendation the summary of your Council’s legal opinion in Paragraph 21 of the Committee Report was key. That advice did not support a full or partial Prohibition Order and recognises that the Secretary of State would almost certainly refuse to confirm the Prohibition Order, in the light of the evidence provided with a significant risk of costs being awarded against the Council should the Prohibition Order proceed. That advice echoed a Legal Opinion sought by Tuckwells which had been provided to your Officers. Pursuing the Prohibition Order had resulted in 2 years of uncertainty and extra costs for Tuckwells, at a time when they have been making significant financial investments in the ROMP and so they were requesting that this ongoing uncertainty should end and an evidence-based decision made today to quash the Prohibition Order, as recommended by your officers.

Mr Dunn then responded to questions from:

Councillor Bennett – Tuckwells controlled the ROMP but there was recognition that because the ROMP was a whole area that restoration and management of the unrestored areas was a requirement of the ROMP. Tuckwells were lessees and John Curtis the owners. He agreed with the assessment that it was unlikely that no more mineral would be found in the north west area but if partial prohibition order were served that would sever access to the site which was why the application at Item 7 needed to be approved.

Councillor Gawrysiak – with regards to timing for a workable Romp application an EIA took time and ecology needed to be at least 2 years old in order to be viable. Furthermore, if a problem occurred as part of the process then that would need to be addressed. He hoped an application would be ready for submission by spring 2022 but if problems occurred then that might be delayed. The intention was to bring forward plans to include restoration of parts of the site that have not yet been restored with conditions attached to control what was done.

Councillor Roberts – he would not support a partial order on the north west area as the opportunity needed to be taken to deal with the site as a whole and by doing so provide regulatory control to ensure restoration of the whole area including the north west section but if the site were severed then that control might not be there.  Permissions with attached conditions went with the land and requiring the landowner to comply so there would be a regulatory control that restoration would happen.

Councillor Constance – the ROMP would give the ability to control restoration of the whole site. Severance of the site could create an extra and unnecessary set of problems. The programme for submission was definite with a genuine intent to extract material.

James Lodge, the Managing Director at H Tuckwell and Sons advised that the Thrupp Farm ROMP area was owned by J. Curtis and Sons Ltd who previously worked the site and the reason for the issuing of the current Prohibition Order was a perceived inactivity by this Landowner to progress the ROMP. That, in fact, was incorrect as Tuckwells and the Landowner had been involved in a detailed negotiation to agree a legal contract. That contract had been agreed allowing Tuckwells the sole right to work the remaining 1 million tonnes of sand and gravel and  restore the land to lakes with biodiversity and amenity benefits. To achieve that Tuckwells needed to first submit the ROMP application to agree modern planning conditions - that application was being prepared. They had and continued to heavily invest in the ROMP Application with evidence of that provided to and accepted by County Council officers.  It was clear to him and County officers that the legal test had been met as ‘a genuine intention to extract the mineral’ had been provided and as a result, there was no legal justification or mechanism by which this order could be pursed. In his view, the evidence provided was even stronger now than it had been in 2014 when the Prohibition Order had been quashed and costs awarded againstthe County Council. He asked that the Committee give due regard to the extensive works and investment Tuckwells had made in the ROMP Application; recognise that the legal test to quash the ROMP had been met; and so support your officer recommendations.

Mr Lodge confirmed the response from Mr Dunn regarding the suggested timetable for submission of the ROMP application. Regarding restoration of the ROMP area of extraction that would certainly be in his company’s hands and capabilities.  Regarding the rest of the area that would need to be the subject of further discussion between the landowner and us as operators but there would be a legal obligation to comply with restoration requirements for the site, which would need to be met by us or the landowner or both.

Responding to questions from members officers confirmed that a decision had been taken to secure a ROMP application which needed to deal with the whole area including Curtis’ industrial yard. That application would include conditions requested by the applicant and conditions that the County Council would impose but it was not possible at this time to predict what those might be but restoration would be a requirement. Although it would be possible to apply a partial order our advice was that that would not be the best course of action. The Council made a decision or determination to consider the whole area as a single site under the 1995 Environmental Act but sitting alongside that were the 2017 EIA regulations which specifically related to ROMPapplications and stated that should be treated as a whole site.  The officer assessment had been that it needed to cover the whole site and severing the site presented risks and was not considered a sensible or reasonable approach.  It was not possible to say what the operator would do if a partial order was served but it was likely that they would appeal.

Following a long debate it was RESOLVED (on a motion by Councillor Gawrysiak seconded by Councillor Constance and carried by 11 votes to 1) to defer a decision to the July 2022 meeting of the Committee with the expectation being that the operator would by that time have submitted a ROMP application accompanied by an Environmental Statement for the whole of the Radley ROMP permissions area.